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Commentary on sales law and software
Commentary of Polo van der Putt and Titus Engels on the recent Supreme Court decision in which sales law was applied to software licenses. The commentary was published in Computer Law Review International.
Van der Putt and Engels comment:
“Legal practitioners have been struggling to fit software in the system of Civil Law. The basis of Dutch Civil Law is vested on property rights and objects, the latter being tangible things that can be controlled by humans. Prevailing opinion is that software is neither a property right nor an object. However, the Dutch Supreme Court now has ruled that the acquisition of standard computer software for use that is not limited in time, upon payment of a certain sum of money, in the same way as the sale of objects and property rights, falls within the scope of Sales Law.
The consequence of applying Dutch Sales Law on software licenses is amongst others that by law the software should be fit for the contractual purpose. Under this conformity obligation software should have the qualities which the purchaser was entitled to expect. Besides, the end user may expect that the software has the qualities necessary for a normal use.In business to business contracts parties may deviate from this principle, but in consumer transactions such is not possible. If the software does not conform with the sales agreement, by law the purchaser may demand the repair or replacement of the software. In the event that the purchaser is a consumer, he can also terminate the agreement or he can reduce the price in accordance with the degree of non conformity of the agreement.”